Hightower v. Detroit Edison Co.

• Decision Date: 01 March 1933
• Docket Number: Motion No. 3.
• Citation: 262 Mich. 1,247 N.W. 97
• Parties: HIGHTOWER v. DETROIT EDISON CO. Appeal of TOLONEN.
• Court: Michigan Supreme Court

262 Mich. 1

247 N.W. 97

HIGHTOWER

v. DETROIT EDISON CO.Appeal of TOLONEN.

Motion No. 3.

Supreme Court of Michigan.

March 1, 1933.

Appeal from Circuit Court, Wayne County; Neil E. Reid, Judge.

Action by Minnie Lee Clark Hightower, an infant, by Mable Powell, next friend, against the Detroit Edison Company. From a judgment disallowing an attorney's fee to Jacob A. Tolonen, he appeals.

Affirmed.

Argued before the Entire Bench.

Jacob A. Tolonen, of Detroit, in pro. per.

Charles J. De Land, of Detroit, for appellee.

George E. Brand, of Detroit, amicus curiae.

FEAD, Justice.

May 5, 1932, plaintiff, 7 years old, was injured by defendant's truck. For about four years she had been living with and was supported by her greataunt, Mrs. Mable Powell. Mrs. Powell took her because her mother, who lived in Alabama, had not cared for her properly.

A few days after the injury, Mrs. Powell was solicited by one Bailey, a representative of J. C. Donohue, who conducts business under the name of the Michigan Accident Claims Company, to place the accident claim with Donohue. He told her suit would be commenced. He also said Donohue was a lawyer. The next day she signed papers in Donohue's office, but their contents are not disclosed. Donohue's brother is associated with him, and it was also represented to Mrs. Powell that he had been admitted to practice.

June 2d suit was commenced by summons, with Roscoe C. Griffith as attorney for plaintiff and Mrs. Powell as next friend. Declaration was filed June 14th, with notice that Griffith claimed lien for his services on settlement, recovery, or judgment. Mrs. Powell never talked with Griffith. The declaration was prepared by a stenographer in Donohue's office, examined by Griffith, and then filed. It had no ad damnum clause, which indicates the character of Griffith's employment and inspection. Griffith immediately executed blank substitution of attorney to be kept in Donohue's files. It was executed in blank because Donohue had three or four attorneys who tried such cases for him, and he did not then know which would be chosen. Donohue, not the client, named the trial attorney. Griffith's connection with the case ceased at this point. The procedure was routine, under which Griffith had handled a large number of cases for Donohue. Griffith did not try the cases he so commenced. In a few instances he presented a motion, sought appointment of guardian or administrator, or took consent judgment, but Donohue settled most of the cases himself, and Griffith merely took judgments for such amounts as Donohue told him. Griffith was paid each Saturday by Donohue for the work done during the week.

Appellant, Tolonen, an attorney, tried many of Donohue's cases, beginning late in 1930 or early in 1931. He claims he set his own fee, in all cases talked with the clients, and rejected some cases offered him because something put him on guard, but refused to give the reason for the rejection, as privileged communication between attorney and client. He declined to say whether it was solicitation. He considered that both the party to the suit and Donohue were his clients. He relied on Donohue, at least morally, to see that his fee was paid. He had heard that Donohue had solicited personal injury claims, and he once represented Donohue in an action involving an alleged solicited claim. He was usually employed through a telephone call from Donohue's office. In case of settlement or payment of judgment to him, he would take out his fee, obtain receipt from the client in full, and lay the balance on the table in Donohue's office in the presence of both Donohue and the client. He assumed that Donohue was collecting fees in the cases he tried.

July 20th, on telephone call from Donohue's office, appellant was employed to procure the appointment of Mrs. Powell as plaintiff's guardian. The appointment was made September 14th. Appellant had not then been employed to try plaintiff's case. He was engaged a few days later by Donohue's brother, who informed him that $400 had been offered in settlement. Appellant negotiated a settlement for $600. September 21st he saw Mrs. Powell, and she approved the settlement. She asked his fees, and he said the court would set them. The next day the case came on for trial. The purpose was to take consent judgment on the basis of the compromise. Plaintiff being an infant, the court had the duty to investigate the fairness of the settlement. Appellant was a little late at the trial, and before the arrived Mrs. Powell had told the court that the claim had been solicited.

When appellant appeared, he presented substitution of attorney, signed by Griffith, dated the preceding day, and still blank as to name of attorney to be substituted. He received if from Donohue. The court notified the Detroit Bar Association of Mrs. Powell's claim of solicitation, and Mr. George Brand, its representative, appeared as amicus curiae. The court entered consent judgment for plaintiff for $600. Mrs. Powell filed motion for substitution of Charles J. De Land as attorney for plaintiff in place of Roscoe C. Griffith, prayed that the court determine the amount due Griffith and appellant and the lien of either on the cause of action or judgment, and objected to allowance of lien or fees to either. October 3d the court made an order substituting De Land as attorney for plaintiff, subject to determination of appellant's fees. Answers, supplemental motion, and affidavits were filed, and testimony was taken. October 8th the court denied Griffith and appellant any fees or lien on the grounds that the claim had been solicited in violation of statute and that Donohue was illegally practicing law through Griffith and appellant. The appeal is from disallowance of the fee.

Appellant has been so frank in his testimony and fair in his brief that we are prompted to give full credit to his claim of honest intent. He was not wholly Donohue's servant, but maintained an attitude of ostensible independence and insisted upon personal contact with clients. It was not shown that he took any other solicited case. He knew, or had ample information to cause him to suspect, that Donohue solicited personal injury claims. But we think he might have refused a case if he actually had known Donohue had solicited the claim. Mrs. Powell did not inform him that the instant claim had been solicited, nor did he make inquiry of her. The issue is whether, although appellant felt he conducted himself with propriety, he mistook his duties as an attorney and may be denied a fee.

Was plaintiff's claim for damages solicited by Donohue in violation of Act No. 328, Pub. Acts 1931, ch. 60, § 410: ‘Any person, firm, copartnership, association or corporation or any of the officers, agents, servants, or employees of any such person, firm, copartnership, association or corporation, who shall directly or indirectly, individually or by agent, servant or employee, solicit any person injured as the result of an accident, his administrator, executor, heirs or assigns, for the purpose of representing such person in making claim for damages or prosecuting any action or causes of action arising out of any personal injury claim against any other person, firm or corporation, shall be guilty of a misdemeanor, and any contract entered into as a result of such solicitation shall be void: Provided, however, That nothing herein shall affect an unsolicited contract entered into by any person, firm or corporation with an attorney duly admitted to practice law in this state.’

The act is constitutional. Kelley v. Judge of Recorder's Court, 239 Mich. 204, 214 N. W. 316, 53 A. L. R. 273.

Appellant, invoking the rule of strict construction of penal statutes, contends the act does not apply because Mrs. Powell, the person actually solicited, was not the person injured nor her administrator, executor, heir, or assign.

The rule of strict construction confines an offense to the words of the statute, but it permits the words not only to be read naturally, but to be given a meaning in harmony with the purpose and intent of the law as far as may be done without distortion of language. Deloria v. Atkins, 158 Mich. 232, 241, 122 N. W. 559;People v. Gould, 237 Mich. 156, 163, 211 N. W. 346; Sutherland on Statutory Construction, vol. 2, § 528 et seq.; 59 C. J. 1113, § 660.

The purpose of the act is to discourage the practice commonly known as ‘ambulance chasing.’ The practice has developed recognized evils, the major of which are (1) fomenting litigation with resultant burdens on the courts and public purpose; (2) subornation of perjury; (3) mulcting of innocent persons by judgments, upon manufactured causes of action and perjured testimony, and by settlements to buy peace; and (4) defrauding of injured persons having proper causes of action, but ignorant of legal rights and court procedure, by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlements made for quick return of fees and against the just rights of the injured persons.

The words of the statute must be read in the light of the evil to be cured. With the purpose in mind, we cannot examine the statute from the viewpoint that it was not intended to cover solicitation of claims of injured infants who have no power to contract. The offense is solicitation for the forbidden purpose. We are not obliged to, nor should we, read into the act words which would add to the offense such elements as actual execution of an agreement, capacity of the injured person to contract, or legal control of the party injured by the person solicited. Indirect approach is...